580 F.2d 1179 (3d Cir. 1978)
This lawsuit emanates from a violent altercation between Alvarez and a fellow crew member, electrician Frank Lloyd, that occurred on September 7, 1974, when their ship, the SS EXPORT COMMERCE, was in the port of Yokohama, Japan.1 Lloyd filed an action against Export in the district court, alleging negligence under the Jones Act, 46 U.S.C. § 688, and unseaworthiness under general maritime law, seeking redress for the injuries sustained in the fight. Export joined Alvarez as a third-party defendant and Alvarez, in turn, counterclaimed against Export, alleging, as did Lloyd, negligence and unseaworthiness.2
Lloyd did not proceed in his case as plaintiff, failing to appear on seven occasions for a pretrial deposition, and failing to appear when the case was called for trial on November 18, 1976. Accordingly, his complaint was dismissed by the district court for failure to prosecute, and thereafter trial was had on Alvarez' counterclaim.3 The jury found that although Export had not breached its warranty of seaworthiness, it was nevertheless negligent, and its negligence contributed to Alvarez' injuries. The jury returned a verdict in favor of Alvarez against Export in the amount of $95,000.4
It was Alvarez' theory that Export negligently failed to use reasonable precautions to safeguard him from Lloyd after Export had knowledge of Lloyd's dangerous propensities. Alvarez testified that he suffered from a preexisting heart condition, and that the officers and crew had knowledge of his condition. He further testified to an incident occurring in July 1974 in the port of New York, when he ordered Lloyd to assist in loading electrical stores, and the latter refused. There was testimony as well that Lloyd had been involved in fights with other individuals prior to the incident at issue.5
The jury was not permitted to hear any version of the fight other than that of Alvarez. It was denied the opportunity of hearing the account rendered by Lloyd, who was the other participant in the affray and its only other eyewitness.6 Export contends that this evidence was admissible in the form of transcripts and a final report from a Coast Guard hearing conducted intermittently from January 20, 1975 through January 6, 1976, the purpose of which was to determine whether Lloyd's merchant mariner's document should have been suspended or revoked on the basis of charges of misconduct brought against him for the fight with Alvarez. At that hearing, both Lloyd and Alvarez were represented by counsel and testified under oath.7
The Coast Guard proceeding was a rather elaborate hearing conducted before a professional hearing examiner. In addition to documentary evidence, testimony was received under oath, subject to direct and cross examination, on two charges levelled against Lloyd: that he "did wrongfully assault and batter ROLANDO ALVAREZ, a fellow crew member, with his fists," and that he "did wrongfully fail to perform his duties due to intoxication." The hearing examiner found that the first specification, or charge, was "not proved by substantial evidence" and that the second "was dismissed at the end of the investigating officer's case for the failure to make out a prima facie case."8
Export also assigns as error the refusal of the district court to admit evidence that Alvarez had been convicted, after trial, in a criminal proceeding in Japan for the assault upon Lloyd.9 Alvarez was charged with inflicting injury on Lloyd, pursuant to Chapter XXVII, Art. 204 of The Penal Code of Japan.10 Appellant sought to introduce a "Judgment By Protocol" issued by the Yokohama District Court, Criminal Affairs Department No. 5, Section 7, announcing the judgment of the Japanese court that tried and convicted Alvarez for "Inflicting Injury" upon Lloyd in violation of Chapter XXVII, Art. 204.11
Whether the district court erred in excluding the Coast Guard hearing examiner's Decision and Order from evidence?12
Federal Rule of Evidence 803(8)(C) provides that the following are not excluded by the hearsay rule even though the declarant is available as a witness: records, reports, statements or data compilations, in any form, of public offices or agencies, setting forth factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.13
Yes. The Coast Guard Decision and Order meets every element of Rule 803(8)(C).14 It constitutes a report of a public office setting forth factual findings resulting from an investigation made pursuant to authority granted by law.15 It was offered in a civil action.16 The established facts show that the hearing examiner, acting for the United States Department of Transportation, conducted an elaborate proceeding with sworn testimony subject to direct and cross-examination on charges that Lloyd did wrongfully assault and batter Alvarez and did wrongfully fail to perform his duties due to intoxication.17 The examiner expressly found the assault specification not proved by substantial evidence and dismissed the intoxication charge for failure to make out a prima facie case.18
These findings directly address whether Lloyd was the aggressor and therefore bear on Alvarez's negligence theory that Export failed to protect him after knowledge of Lloyd's dangerous propensities.19
The district court erred in excluding the Coast Guard hearing examiner's Decision and Order from evidence.20
Whether the district court erred in excluding excerpts of Frank Lloyd's testimony from the Coast Guard hearing?21
Federal Rule of Evidence 804(b)(1) provides that former testimony given as a witness at another hearing of the same or a different proceeding is not excluded by the hearsay rule if the declarant is unavailable as a witness and the party against whom the testimony is now offered, or in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.22
Yes. Lloyd was unavailable within the meaning of Rule 804(a)(5).23 He was absent from the hearing and Export was unable to procure his attendance by process or other reasonable means after he failed to appear for seven pretrial depositions and for trial.24 The Coast Guard investigating officer qualifies as Alvarez's predecessor in interest. Both shared a community of interest in determining culpability for the same nucleus of operative facts arising from the conduct of Lloyd and Alvarez aboard the SS EXPORT COMMERCE.25 The established facts demonstrate that the investigating officer attempted to establish Lloyd's intoxication, his role as aggressor, and his prior hostility toward Alvarez, the identical facts Alvarez sought to prove at trial to support his negligence claim.26
Lloyd's testimony at the Coast Guard hearing directly refuted Alvarez's account of the New York port incident and the Yokohama altercation, supplying the jury with the only other eyewitness version of events.27
The district court erred in excluding excerpts of Frank Lloyd's testimony from the Coast Guard hearing.28
Related opinions on this issue
District Judge Stern concurs in the result that Lloyd's testimony should have been admitted but disagrees with the majority's construction of the predecessor-in-interest requirement under Rule 804(b)(1).29 Stern maintains that Congress deliberately rejected the broader similar-motive formulation originally proposed by the Supreme Court and instead limited the exception to a party's predecessor in interest in the traditional substantive-law sense of privity.30 In Stern's view, a mere community of interest between the Coast Guard investigating officer and Alvarez is insufficient. It collapses into the separate similar-motive element and would render admissible against Alvarez all testimony from any administrative hearing in which an unrelated government actor sought to establish the same facts.31
Stern would instead admit the testimony under the catch-all exception of Rule 804(b)(5) after balancing the potential unfairness to Alvarez against the proponent's compelling need for the only other eyewitness account.32
Whether the district court erred in excluding the Japanese judgment of conviction against Roland Alvarez?33
Federal Rule of Evidence 803(22) provides that evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, is not excluded by the hearsay rule to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused.34
Yes. The Japanese judgment of conviction satisfies Rule 803(22).35 It is a final judgment entered after trial adjudging Alvarez guilty of inflicting bodily injury, a crime punishable by imprisonment in excess of one year.36 It is offered to prove facts essential to sustain the judgment arising out of the identical altercation that forms the gravamen of Alvarez's civil action.37 The established facts establish that Alvarez was charged under Chapter XXVII, Article 204 of the Penal Code of Japan, tried by the Yokohama District Court, and sentenced to seven months' penal servitude with a two-year stay of execution.38 The Japanese proceedings met the standards of civilized jurisprudence, including representation by counsel, a meticulous police investigation with photographs and medical reports, and a clear formal record.39
Principles of comity therefore support admission of the judgment as evidence of facts essential to the conviction.40
The district court erred in excluding the Japanese judgment of conviction against Roland Alvarez.41